TWN
Third World Network
Email: twnet@po.jaring.my Website: www.twnside.org.sg
Address: 121-S, Jalan Utama, 10450, Penang, MALAYSIA
Tel: 60-4-2266728/2266159 Fax: 60-4-2264505
Briefings for
COP 7
1
COP7 decisions will shape future of CBD
By Chee Yoke Ling (TWN) and Edward Hammond (The Sunshine Project)
A number of COP7 decisions will affect the future of
the CBD in a fundamental way: the fate of the
precautionary principle in Australia’s attempt to reopen
the COP6 decision on invasive alien species; the
treatment of the rights of indigenous peoples and local
communities; an international regime on benefit
sharing; the work programme on technology transfer
and cooperation.

The Precautionary Principle is very important in
guiding decisions when there is scientific uncertainty and
gaps in knowledge. It is also important in reversing the
burden of proof, a crucial issue when intentional
activities may have adverse effects on biodiversity and
human health.
Currently, local communities, indigenous peoples and the
public at large have to prove that an activity or product
has adverse impacts on biodiversity and human health.
Socio-economic impacts are often disregarded, from
rights to resources and traditional knowledge to loss of
livelihoods. The Precautionary Principle shifts the
responsibility to the proponent of a project or activity to
show that there will be no adverse impacts (though the
standard is not an absolute one). This means a holistic
approach: integration of biodiversity conservation,
ecosystem approach and socio-economic considerations
into technology or activity assessments and decisionmaking.
At COP6 the Guiding Principles on invasive alien species
were adopted, and the first principle was the
‘Precautionary approach’. At COP7 Australia is
determined to re-write 3 sections of the Principles so as
to subjugate the CBD to trade agreements and trade
interests. In the past 2 years, they have spent considerable
time and political energy in taking the issue to the WSSD
and even the UN General Assembly. Their proposed
amendments facilitated by the COP6 President from the
Netherlands are an assault on the precautionary principle.
References to the CBD preamble that spell out the
precautionary principle are removed, and the much
weaker Rio Principle 15 reasserted. New text is
introduced that shifts the burden of proof from the
proposer of the introduction of an alien species to the
recipient. “Clarifications” are introduced that downgrade
socio-economic and cultural considerations.
These changes go far beyond the usual “balancing”
language i.e. the “mutual supportiveness of
environmental, trade and development agreements”. If
accepted, the CBD would be severely undermined in
favour of trade agreements.

Since the CBD entered into force, positive steps
have been made in recognising the rights of indigenous
peoples and local communities at the international level.
In COP7, decisions and work programmes on protected
areas, mountain ecosystems and an international regime
on (access and) benefit sharing all call for recognition of
those rights, including prior informed consent and fair
and equitable benefit sharing. While sovereignty of
States is reaffirmed, the relationship of the State and its
people needs to encompass the challenges of human
rights including rights to land, natural resources,
traditional knowledge and sharing of benefits.

The decision by Heads of States at the World
Summit on Sustainable Development to: “Negotiate
within the framework of the Convention on Biological
Diversity, bearing in mind the Bonn Guidelines, an
international regime to promote and safeguard the fair
and equitable sharing of benefits arising out of the
utilization of genetic resources”.
At earlier COP meetings, many G77 members had called
for a legally binding international protocol on access and
benefit sharing that would create rules and procedures
that safeguard the rights of provider countries, while
ensuring that user countries fulfil their corresponding
obligations to meet the CBD objectives.
The Bonn Guidelines and national access regulations are
insufficient to stop biopiracy (both of biological
resources and traditional knowledge). In fact, the
expansion of patents and other IPRs legitimizes many
expropriations. The latest scandal is the European Patent
Office grant of a broad patent over an important wheat
variety from India.
A legally binding international regime that will ensure
obligations on the part of user countries to serve the CBD
objectives is thus needed. Elements could include:

prior informed consent from provider countries or
countries of origin, as a prerequisite of any IPR
claims;

prior informed consent of indigenous peoples and
local communities where their biological resources
or traditional knowledge are affected, as a
prerequisite of any IPR claims;

alternative systems of protection of traditional
knowledge, innovations and practices of
indigenous and local communities;

alternative systems of reward, incentives and
benefit-sharing which are not based on existing
IPR regimes but consistent with the CBD
objectives of fair and equitable benefit-sharing.
A related fundamental issue is the extent of IPR claims.
The patentability of life forms and the sui generis system
for plant variety protection under the Agreement on
Trade-related Aspects of Intellectual Property Rights
(TRIPS) are still being clarified and debated. The CBD’s
objectives require a different approach to knowledge
protection and claims.
Having left the IPR topic and the TRIPS-CBD
relationship to WIPO and the WTO for so long, COP7
must reassert itself by framing the priorities and
safeguarding the CBD’s principles and objectives in any
effort to address IPRs.
Meanwhile, the Like-Minded Group of Megadiverse
Countries advocates a benefit sharing international
regime, with access to be determined by national
governments. This is in line with the WSSD decision
adopted by Heads of States.
Indigenous peoples are extremely concerned that any
regime which does not safeguard their rights to natural
resources and knowledge will further exploit them. With
millions of farmers already adversely affected by
biopiracy, COP7 has a duty to respond urgently.
A matter left out of the discussion so far is the ABS
regime for biological resources beyond national
jurisdictions. The Protected Areas work programme
raises this issue, but not the ABS decisions. One obvious
example is the Antarctica which is currently governed by
a treaty dominated by developed countries, operating
more like a club than an international regime. COP7
should thus begin to address this.

The draft decision on technology transfer and
cooperation fails to acknowledge 3 major obstacles that
are the responsibility of developed countries: intellectual
property rights (IPRs), especially patents on life forms,
export controls and restrictive business practices. On the
contrary, in Element 3 (Enabling Environment) of the
proposed Work Programme, the thrust is to get
developing countries to liberalise their economies,
increase investor protection and corporate IPRs.
Patent expansion and patent secrecy: Patents are very
problematic for technology transfer; but many patentable
inventions, including in the biological sciences, are
controlled even more tightly. These are the patent
applications that are deemed so sensitive that they are
denied and then sealed under a “secrecy order” that
imposes criminal penalties if the information is divulged.
In the US, there are currently almost 5,000 secret patent
applications in the nuclear, chemical, aeronautical,
cryptographic and, increasingly, biological sciences.
While many of the secret technologies are primarily
military, the application of patent secrecy to biology
hides knowledge and stops transfer of technologies that
have peaceful uses relevant to the CBD. And, at the same
time, many of the developed countries that use patent
secrecy also argue that developing countries must accept
life patenting – even though the rich countries themselves
exclude many technologies from patentability based on
“national security” concerns. Because almost the entire
patent secrecy system is concealed by classification, the
true extent of its impact on technology transfer is
unknown to the public.
Arbitrary export controls: The Australia Group is an
“informal arrangement” (i.e. non-treaty agreement)
between a club of rich countries that prevents transfer of
certain “dual use” biotechnology and knowledge that is
considered to be potentially security-related. Export
controls deny transfer of bio-processing, containment,
and manufacturing technologies that are potentially
critical for sustained use and benefit-sharing, for
example, the technologies used to produce some
pharmaceuticals, biological controls, and industrial
enzymes.
More than half the world’s population lives in the more
than three dozen countries subject to the strictest
controls. The controls are arbitrary - countries can be
added to the list without any explanation. Countries that
are denied technology have no right to an international
hearing or appeal. Export controls might slow the spread
of some technology that would be dangerous in the
wrong hands; but they can also be used to defend product
markets and to prevent commercial competition. In
response to this unfair and capricious arrangement,
developing countries have proposed that the Australia
Group be disbanded and that it be replaced by a fairer
and more transparent United Nations agreement. COP7
should contribute to the development of international
mechanisms, including agreements that ensure the
development and transfer of technologies that are
environmentally,
socially
and
economically
sustainable, consistent with the objectives of the CBD.